ARBITRATION
DECISION NO.:
570
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Youth Services
Maumee Youth Center
DATE OF
ARBITRATION:
February 14, 1995
DATE OF
DECISION:
March 27, 1995
GRIEVANT:
Terrence Hopkins
OCB
GRIEVANCE NO.:
35-05-(93-08-23)-0018-01-03
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Lois Haynes
Staff Representative
FOR THE
EMPLOYER:
Barry Braverman
Advocate
Kim Browne
Second Chair, OCB
KEY WORDS:
Insubordination
Just Cause
Notice
Progressive Discipline
Removal
ARTICLES:
Article 24-Discipline
§24.01-Standard
§24.02-Progressive Discipline
Article 34-Service Connected
Injury and Illness
§34.02-Coverage for
Workers' Compensation
Waiting
§34.04-Occupational
Injury Leave
Appendix K-Guidelines for
Occupational Injury Leave
FACTS:
The Grievant was employed as a Youth
Leader at the Maumee Youth Center, a minimum security facility for the
incarceration of youth offenders. On
May 17, 1992, the Grievant suffered an injury while helping to break up a fight
on the job. As a result of this injury,
the Grievant was unable to fully perform all of his duties, was forced to take
leave from his job and he applied for both Occupational Injury Leave and
Worker's Compensation.
While the Grievant was on leave, the
Employer continually tried to communicate with him in order to have the
Grievant examined by a state appointed physician. Both regular and certified mail were used to try to contact the
Grievant, as well as phone calls. After
the Grievant failed to appear for either doctor's appointment, disciplinary
hearings were scheduled. Notice of
these hearings was given to the Grievant by letters and phone calls as
well. These letters and calls were
intended mainly to communicate to the Grievant the time and place of the doctor's
appointments and disciplinary hearings.
The Grievant was absent for all of these appointments and hearings. As a result, the Grievant was discharged for
insubordination.
EMPLOYER'S
POSITION:
The Employer argued that there was
just cause to discharge the Grievant.
First, on two occasions, the Grievant failed to follow the Employer's
orders to be examined by a physician.
The Employer stated that the examinations were at no cost to the
Grievant and he was told where to go and when.
Secondly, the Employer argued that
it accommodated the Grievant in every possible way. The Employer pointed out that it attempted to notify the Grievant
by both regular and certified mail, and by telephone. The Employer also rescheduled doctor's appointments and
disciplinary hearings in order to accommodate the Grievant.
Third, the Employer argued that it
is unknown whether or not the Grievant can even continue to perform his job
duties. The Grievant has been
restricted from trying to break up fights between youths in order to avoid
future injury. This responsibility is a
significant part of the Grievant's job.
UNION'S
POSITION:
The Union argued that the procedure
used in the Grievant's discharge was improper.
First it argued that the discipline of the Grievant was not progressive
in accordance with the Collective Bargaining Agreement. The Union stated that the Grievant was given
only oral reprimands and a written reprimand which was neither signed nor
received by Grievant.
Second, the Union
argued that the Grievant could not have willfully disobeyed orders of which he
was not aware. The Union pointed out
that the Grievant was not at home when the notices were delivered and he
checked his messages regularly and received none from the Employer. Further, although the one message was
delivered by hand, later messages were not, despite management's own
recommendation that it do so.
Third the Union argued that the
Employer treated the Grievant unfairly by refusing to grant him light duty and
allow him to stay on the job.
ARBITRATOR'S
OPINION:
The Arbitrator stated that dismissal
for insubordination requires a willful or intentional disregard of lawful and
reasonable instructions on the part of the Grievant. The Arbitrator determined that the Employer had the right to
order a physical examination under these circumstances, and that such an
instruction was both reasonable and lawful.
The issue, therefore, was whether the Grievant was aware of the orders
to submit to the examination.
The Arbitrator found that the
Employer was more than reasonable in its attempts to contact the Grievant. Two facts demonstrated the reasonableness of
the Employer: the Employer sent both regular and certified letters and the
Employer rescheduled the appointments and gave the Grievant a second chance to
submit to an examination. The
Arbitrator also found that the Grievant was uncooperative and frustrated the
attempts of the employer to contact him.
This frustration was caused by the Grievant not informing the Employer
where he could be found and not completing his paperwork in a timely fashion.
The Arbitrator also rejected the
Union's argument that the Employer treated the Grievant unfairly by refusing to
grant him light duty. The Arbitrator
pointed out that it was the Grievant's own physician who placed restrictions on
the kind of work he could do. Also, the
Arbitrator stated that the inability of the Grievant to break up fights would
seriously affect his ability to serve as a Youth Leader, as dealing with fights
is a significant part of the job.
The Arbitrator found the Union's
argument that the discipline in this case was not progressive to be
unpersuasive. The Arbitrator stated
that insubordination is a cardinal offense and it might justify discharge on the
first incident. It is not the kind of
minor offense which requires progressive discipline. The fact that the Employer gave the Grievant a second chance
showed that the Employer was trying to be reasonable. Further, the Arbitrator stated that any lesser penalty which
would be imposed would have to be designed to correct the Grievant's
behavior. The Arbitrator stated that,
considering the Grievant's behavior, there was no reason to think that giving
him a third chance would correct the problems.
AWARD:
The grievance was denied.
TEXT OF
THE OPINION:
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the Matter of Arbitration
Between
OHIO CIVIL SERVICE
EMPLOYEES ASSOCIATION
LOCAL 11, AFSCME. AFL/CIO
and
OHIO DEPARTMENT OF
YOUTH SERVICES
OPINION AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
35-05-930823-18-01-03
March 27,
1995
Terrence
Hopkins, Grievant
Discharge
Appearances
For the Ohio Civil Service Employees Association:
Lois
Haynes, Staff Representative; Advocate
Terrence
B. Hopkins, Grievant
Felisha A.
Strode, Chapter President
For the Ohio Department of Youth Services:
Barry
Braverman, Labor Relations Officer; Advocate
Kim
Browne, Labor Relations Specialist,
Ohio
Office of Collective Bargaining; Second Chair
Nan Hoff,
Superintendent, Maumee Youth Center
Linda
Bess, former Superintendent, Maumee Youth Center
Mary
Creager, Personnel Officer, Maumee Youth Center
Jennilee
Barnhart, Personnel Officer, Maumee Youth Center
Hearing
A hearing on this
matter was held at 9:00 a.m. on February 14, 1995 at the Ohio Office of
Collective Bargaining in Columbus, Ohio before Anna DuVal Smith, Arbitrator,
who was mutually selected by the parties, pursuant to the procedures of their
collective bargaining agreement. The
parties were given a full opportunity to present written evidence and
documentation, to examine and cross-examine witnesses, who were sworn or
affirmed, and to argue their respective positions. The oral hearing concluded at 3:00 p.m., whereupon the record was
closed. This opinion and award is based
solely on the record as described herein.
Statement of the Case
At the time of
his removal on July 29, 1993 for insubordination, the Grievant was a youth
leader at Maumee Youth Center near Toledo, Ohio. This is a minimum security facility for the incarceration of
felony youth offenders. Youth Leaders
are responsible for the direct supervision and care of the Department's
charges, who can be and are violent at times.
The Grievant carried 7-1/2 years of seniority at the time of his
removal, was assigned to the so-called "action shift" (3-11 p.m. when
the youth are out of school), and had two oral and one written reprimands on
his record since July 1, 1990. He also
was employed for a period of time in a management position, during which he was
disciplined a number of times. The
record further discloses that he was informed on the rules of the Department,
which discipline grid indicates a 15-day suspension, to removal for a first
incident of insubordination, and removal on the second.<PAGE NAME="3">
On May 17, 1992,
the Grievant was injured when he helped to break up a fight on the job. Under the terms of the Collective Bargaining
Agreement, he was eligible to apply for up to 960 hours of occupational injury
leave (hereinafter "OIL") in lieu of Workers' Compensation, and then
Workers' Compensation after OIL is exhausted (Joint Ex. 1, Article 34.04 and
Appendix K). The Grievant's application
for these benefits followed a tortuous course over the next sixteen
months. Eventually all 960 hours of OIL
were approved and used, as was the Workers' Compensation waiting period
coverage provided for in Article 34.02, but the Workers' Compensation claim was
ultimately denied on December 8, 1993 and the grievant testified that he did
not receive his first OIL until five months after his injury. During this period the Grievant was returned
to work for a brief period, beginning August 4, 1992, but was relieved of duty
again on August 16 after the OIL application documents indicated he could only
perform light duty. He testified he had
no difficulty performing his duties (though he broke up two fights) because he
did not lift over 25 pounds (which was his phycial restriction). The record shows there is no light duty at
this facility because all employees must be able to respond to
emergencies. The Grievant then mailed a
number of certificates signed by his personal physician that eventually covered
his absence through August 3, 1993 (Joint Ex. 2A). On June 3, his physician wrote recommending that "when the
patient returns to work that he is not in a position where he has to break up
fights because this will probably cause recurrence of his rotator cuff tendonitis,
disabling him all over again" (Joint Ex. 2B).
In the meantime, the Department was attempting to
communicate with the Grievant regarding the necessity to submit various
documents, with mixed success.[1] The thrust of
these attempts was to have him examined by a State Appointed Physician
(hereinafter "SAP") pursuant to 123:1-33-04 OAC. A July 28, 1992 letter notifying him of an
appointment was returned as unclaimed.[2] On August 20 he missed this
appointment. On August 24,
representatives of the Department and the Union hand-carried a notice of the
rescheduled appointment. The Grievant
kept that appointment and, on September 11, the doctor's report confirmed his
inability to return to work at that time (Joint Ex. 4C). In April 1993, the Department was informed
by the Ohio Department of Administrative Services--Workers' Compensation Unit
that its decision regarding certification for the Workers' Compensation claim
was being held in abeyance pending a report of the SAP's exit examination. The Department scheduled an appointment for
April 12 and sent another letter so-informing the Grievant. This was returned as unclaimed after two
attempts to deliver it. After the
Grievant missed this appointment, it was rescheduled for June 9, and again an
attempt was made to inform the Grievant.
This mail, too, was returned as unclaimed (Joint Ex. 2C). Mary Creager, Personnel Officer at the
facility, testified that she confirmed with the physician that the Grievant
also missed this appointment. The
Grievant says during this period he was living in Michigan and came home about
every other weekend, but had no phone messages from the
Department. He testified that whenever
he inquired of Ms. Barnhart about his Workers' Compensation claim, he was
always told it was in process; additionally, he was unable to reach Workers'
Compensation by the phone number provided.
The disciplinary process was invoked
thereafter, but this, too, was frustrated by futile attempts to reach the
Grievant. The pre-disciplinary meeting
notice of June 23 (sent certified and regular mail) was returned as unclaimed
and neither the Grievant nor the Union appeared. The Union requested that the meeting be rescheduled, so a second
notice was sent June 30, fixing the date for July 6. Again no one appeared for the Grievant. On July 29, the Grievant was discharged. The removal notice (Joint Ex. 2) states in
part:
"On or about April 29, 1993, and June 9,
1993, you were scheduled for a medical examination with a State appointed
physician. This examination was
scheduled in accordance with Section 123:1-33-04 of the Ohio Revised Code. You failed to report for either examination
and failed to reschedule the appointments.
Your actions violate Department of Youth
Services Directive B-19, Rule #6(b) Insubordination--willful disobedience of a
direct order by a supervisor."
A
grievance protesting this action was filed August 5, 1993. A Step 3 meeting was held on August 26. The Grievant was not present (he testified
because he had no way to get there), but the Union offered that he had been
removed inappropriately on account of having a pending Workers' Compensation
claim. The State rejected this argument
as it had no awareness of such a claim.
In fact, the record shows that the Grievant signed his application to
reactivate the claim on August 23, 1993 and the physician's signature was dated
August 25, 1993 (Joint Ex. 4E, C-85A).
This petition was denied on December 8, 1993, as was the claim itself.
Being unresolved, the case was
appealed to Arbitration on February 17, 1994, where it presently resides for
final and binding decision, free of procedural defect.
Issue
As stipulated by the parties, the issue before
the Arbitrator is the following:
Was the Grievant terminated for just cause?
If not, what shall the proper remedy be?
Arguments of the Parties
Argument
of the Employer
The
Department's position is that it had no choice but to terminate the
Grievant. On two occasions he failed to
follow the Employer's order to be examined by a SAP to determine if he could
perform his duties. Nevertheless, the
Employer took every possible step before removing him: resetting appointments
and meetings, mailings, even hand-delivery.
The Grievant says he got letters from the Department of Administrative
Services, so there is every reason to assume he also got the mail from the
facility.
The exam was ordered in compliance
with State law and the instructions to the Grievant were clear and
understandable. He knew where to go and
the examination was at no cost to him.
The Grievant acted in willful disobedience of an order and he knew the
consequences.
The Union, by contrast, has not
shown the Department was arbitrary, capricious or abusing its discretion when
it imposed removal. Although the
disciplinary grid shows flexibility in discipline for insubordination, one
must take into account the Grievant's prior discipline. What, asks the Employer, is corrective when
the Grievant has been silent for 18 months since his termination? He did not attend his pre-disciplinary or
third-step meetings. Instead, the Union
came in with the flimsy excuse of a pending Workers' Compensation claim that
was not even filed until after his removal.
On top of this, none of the Management witnesses present at the
arbitration knew if he can perform his job duties.
The Department concludes that it had
just cause for terminating the Grievant and asks that the grievance be denied.
Argument
of the Union
The
Union's position is that the Grievant was discharged under specious
conditions. Although there was no
dispute about his injury, Management wanted to deny his OIL claim. Documents went back and forth, the Grievant
submitted the application but the doctor delayed. Dates on the letter show it was the Grievant who had to call
Columbus to get the claim straightened out.
Meanwhile, the Grievant was despondent with no income.
Other facts show Management's
attitude towards the Grievant: other employees performed light duty work and
the Grievant handled fights when he was on the job in August, 1992. Tle Union says it has also shown why the
Grievant was not at home when Management's notices were delivered, but that he
checked his messages regularly.
Management hand-delivered one, but not the later ones despite
Management's own recommendation that it do so.
The Union goes on to argue that the
discipline imposed here was not progressive in accordance with the Collective
Bargaining Agreement and Management's own policy; as there were only oral
reprimands and one written reprimand that was neither signed nor received.
Finally, the Union says the reason
the Grievant has not contacted the Center in the last eighteen months is
because he was fired. It asks that the
termination be overturned, the Grievant be reinstated and awarded all backpay
and benefits.
Opinion of the Arbitrator
Insubordination
implies a willful or intentional disregard of lawful, and reasonable
instructions. The Union does not
challenge the Department's right to order a physical examination under these
circumstances, but it does contend, in the first place, that the Grievant could
not have willfully disobeyed orders of which he was unaware. In the second place, the Union suggests that
the Grievant was actually, a victim of Management's unfair treatment in the
handling of his claim, which it wanted to deny. Finally, the parties disagree as to whether the penalty was
progressive as called for by the Collective Bargaining Agreement.
The communications sent from the
Department to the Grievant's home address clearly issue a reasonable order and
state disciplinary consequences for failure to comply. The Grievant was informed on the
Department's work rules, so must be held accountable for knowing suspension or
removal were possible outcomes if he disobeyed. The only element of insubordination at issue is whether the
Grievant received and thus understood the order. The Employer argues that since he received other mail at his home
address, it must be assumed he received these mailings, too. I would tend to agree that receipt of other
mail increases the probability that this mail was received, but it does not
create its certainty.
Otherwise there would be no traffic in certified mail. What is odd, however, is that it is only
adverse communications that the Grievant alleges were not received. One also wonders whether the letter carrier
left notices when s/he was unable to deliver the letters and, if so, why the
Grievant did not respond to them. The
Union correctly observes that Management might have done more. (It considered
and evidently rejected another hand-delivery when the April 16, 1993 certified
mail was returned unclaimed and there is a curious lack of evidence of phone
calls.) But the real question is not whether it could have done more. It is
whether Management did enough. This arbitrator has never required any
party to use all available means or to turn over every stone. She uses lesser standards such as
"reasonableness" and "fairness." The record is replete with Employer attempts to communicate with
the Grievant and get him to supply requisite documents, as well as many calls
and letters to physicians. The record
as a whole supports the view that the Employer spent considerable effort in the
Grievant's behalf but was frustrated by his lack of cooperation. He did not inform Management of his
whereabouts and he did not complete and file paperwork in a timely
fashion. Then, in arbitration, he
attempts to blame Management and his doctor for the delay by, for example,
stating he filled out and signed the OIL application on June 10 and sent it
in. He does not, however, say when he
mailed it. Delay in mailing would
account for Employer requests for documentation (including the Union's own Exhibit
1), the Employer's assertion that it did not receive the application until
August 3, and the Grievant's statement that he did not hear from Management
about it until August 4. The contention
that the Employer sat on its hands is without foundation, and under the
circumstances, giving the Employee a second chance to respond to the order to
submit to a medical examination by rescheduling the appointment itself and
again attempting to inform the Grievant through regular and certified mail to
the only address the Employer had, constitutes reasonable effort.
The Union also claims the Employer
unfairly refused to grant the Grievant light duty, pointing to incidents of
other youth leaders working while injured and his own ability to break up
fights while on the job in August of 1992.
This overlooks the fact that it was the Grievant's own physician who
placed restrictions on the Grievant.
That he was not reinjured when he was working is fortunate, but did not
reduce the risk of future injuries (had he continued to work) or the Employer's
exposure should his incapacity be a factor in injuries to others. It is worth mentioning that only two weeks
after he was relieved of duty, the State Appointed Physician noted the
Grievant's fear of using his right arm to break up fights and was of the
opinion that he could continue his job as youth leader "provided he does
not have to use his right upper extremity to break up fights" (Joint
Ex.4C). The very nature of his job,
which exposes him, his co-workers and the youth in his care to violence, makes
the Employer's decision to relieve him completely understandable.
Finally, one comes to the
reasonableness of the penalty. The
purpose of discipline under the just cause standard is correction of
undesirable behavior. Although
insubordination is a cardinal offense which might justify discharge on the
first incident, I do not sustain the removal of this grievant because of
that. I do so because, having found him
guilty of insubordination and the case clear of fatal procedural flaw, there
must be some reason to expect a lesser penalty to have a corrective effect and
to believe the Grievant is now capable of performing his assigned duties. The Employer, facing an employee who had twice
ignored an order to submit to a physical exam and who had twice failed to
appear at scheduled pre-disciplinary hearings, had no reason to believe a
suspension and a third order would obtain the desired result.
While it is tempting to believe that
the Grievant was in a situation beyond his control, being caught in a morass of
bureaucratic red tape, without funds, and depressed at his predicament, I
cannot get over the hurdle that he essentially removed himself, when he became
unavailable to his Employer's communications, not even responding to impending
disciplinary action. The Employer did not
abuse its discretion when it chose not to afford the Grievant third chance.
Award
The grievance is denied in its entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
March 27, 1995